Canadian Employers & International Laws

Written on behalf of Peter McSherry

Not many people have heard of Eritrea, a small country in East Africa. Nevsun, a Canadian company that owns a mine known as the Bisha Mining Share Company, however, knows it quite well.

This country has a program called the “National Service Program”, under which all citizens are required to provide military or similar public service once they reach the age of 18. They were then compelled to work for many years on various projects advocated by the party in power.

One such initiative was the Bisha Mine. The workers alleged that they were forced to work 12 hours a day, six days a week in temperatures close to 50 degrees celsius. They were also physically beaten, according the workers’ allegations.

The workers ultimately escaped and became refugees in Canada.

This case was then presented against Nevsun in Canadian courts, alleging that it promoted and benefited from employing people in slave-like conditions, forced labour, and crimes against humanity. The legal claim was that these conditions were violations of “customary international law” which in turn was a fundamental concept of Canadian law.

This was the legal issue which was presented for our courts to decide. The Supreme Court decided that this submission of the employees should succeed. Certain rules of international law, it stated, were “peremptory norms”, which can never be avoided. The Court found then that this principle of international law was indeed part of Canadian common law.

The company raised a second defence was that Canada could not rule on the conduct of another state’s laws. This is referred to as the “act of state doctrine”. This argument also failed.

The decision was all about legal theory, yet it remains a very important ruling. The actual merits of the case remain to be decided. It is very likely that the workers in numbers of some significance will prove their case at trial eventually.

The Common Law Remains Dynamic

This issue has never previously been tested in a Canadian court. The decision reflects how our common law changes, bobs and weaves as different arguments are presented. Our fundamental common law is not static nor written down in a concrete, unyielding code.

This case is not unique in concept. A recent decision of the Ontario Superior Court also reviewed the same “novel” analysis based on a claim made by female employees of a subordinate of a Canadian mining company in Guatemala who suffered sexual abuse on the job. After noting that the first two steps of the analysis were met by the pleadings, as is the test, the court then considered the policy issue, to which issue the court concluded that there were “competing” policy issues that were sufficient to allow the case to proceed to trial.

It is to be noted that the policy arguments may be unique to the facts of the case, namely, a Canadian mining company sued by persons alleging serious harm by security personnel at its foreign location, apparent steps being taken by the Canadian federal government to encourage a high standard of “corporate social responsibility” and the need to marshal the international activities of western companies in Third World countries. This case also remains in progress.

Get Advice and Know Your Rights

International employment laws present a complicated subject matter, even when it comes to Canadian-owned companies. Human rights violations enacted by Canadian employers should be held to task, no matter where they take place. We will continue to follow these cases as they move through the courts in Canada.

It is important to take advice and know your rights on this issue and indeed any employment law issue.  Get advice. Learn your rights. Then decide. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.